Karnataka High Court

Kishor .N vs State Of Karnataka on 20 November, 2024

Author: V Srishananda

Bench: V Srishananda

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                                                 NC: 2024:KHC:47373
                                            CRL.RP No. 1205 of 2024



                                                                R
              IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                DATED THIS THE 20TH DAY OF NOVEMBER, 2024

                                   BEFORE
                   THE HON'BLE MR JUSTICE V SRISHANANDA
               CRIMINAL REVISION PETITION NO. 1205 OF 2024
            BETWEEN:

            KISHOR N,
            S/O NANJUNDASWAMY K.N,
            AGED ABOUT 33 YEARS,
            R/AT NO. 232, 6TH MAIN ROAD,
            3RD 'A' CROSS, BHAVANI NAGARA,
            RAILWAY LAYOUT, ULLALA MAIN ROAD,
            BENGALURU - 560 056.
                                                       ...PETITIONER
            (BY SRI. M. SHASHIDHARA, ADVOCATE)
            AND:

            STATE OF KARNATAKA
            BY BANASHANKARI TRAFFIC P.S.,
            REPRESENTED BY SPP,
            HIGH COURT OF KARNATAKA,
            BENGALURU - 560 001.
Digitally                                            ...RESPONDENT
signed by   (BY SMT. WAHEEDA M.M, HCGP)
MALATESH
KC               THIS CRL.RP IS FILED U/S.397 R/W 401(FILED U/S.438
Location:   R/W SEC.442 BNNS) OF CR.P.C PRAYING TO SET ASIDE THE
HIGH        JUDGMENT OF CONVICTION PASSED BY THE HONBLE
COURT OF
KARNATAKA   METROPOLITAN MAGISTRATE TRAFFIC         COURT   IV   AT
            BENGALURU DATED 04.09.2024 IN CRL.A.NO.626/2022 BY
            CONFIRMING THE JUDGMENT OF CONVICTION PASSED BY THE
            TRIAL COURT, FOR OFFENCE P/US/ 279 AND 304-A OF IPC,
            DATED 30.04.2022 IN C.C.NO.7848/2018 PASSED BY THE
            HONBLE METROPOLITAN MAGISTRATE TRAFFIC COURT IV BY
            ACQUITTING THE PETITIONER.

                THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
            ORDER WAS MADE THEREIN AS UNDER:
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                                                     NC: 2024:KHC:47373
                                               CRL.RP No. 1205 of 2024




CORAM:       HON'BLE MR JUSTICE V SRISHANANDA

                               ORAL ORDER

Heard Sri.M.Shashidhara, learned counsel for the revision

petitioner and Smt.Waheeda M.M., learned High Court

Government Pleader for respondent/State.

2. Accused who suffered an order of conviction in

C.C.No.7848/2018 dated 30.04.2022 on the file of Metropolitan

Magistrate Traffic Court - IV, Bengaluru for the offence

punishable under Section 279 and 304A of IPC.

3. Being aggrieved by the same, accused filed an

appeal before the First Appellate Court in Crl.A.No.626/2022.

4. Learned Judge in the First Appellate Court

suspended the order of conviction and sentence by order dated

02.06.2022 and ordered to secure the Trial Court Records.

5. Learned Additional Public Prosecutor took notice of

the appeal and Trial Court Records were received on

17.11.2022. Matter thereafter was listed eleven times before

the First Appellate Court but on all those dates of hearing,

learned counsel for the revision petitioner/appellant remained

absent. Taking note of the conduct on the part of the revision

NC: 2024:KHC:47373

petitioner/appellant, learned Judge in the First Appellate Court

on 04.09.2024 passed the following order:

"Case has been called out.

Learned Public Prosecutor is present. Appellant and counsel absent. Perused the records.

It is evident from the order sheet that there is no representation on behalf of the appellant on several adjournments.

So, it appears that the appellant is not interested. As such, appeal is dismissed by confirming the Trial Court judgment.

Office is directed to send back the Trial Court Records."

6. Being aggrieved by the same, accused is before this

Court in this revision.

7. Sri.M.Shashidhara, learned counsel for the revision

petitioner reiterating the grounds urged in the revision petition

vehemently contended that the approach of the learned Judge

in First Appellate Court cannot be countenanced in law

especially having regard to the rights envisaged for the accused

in criminal justice system.

8. He further pointed out that the lawyer could not

note proper hearing dates and whereby he lost track of the

appeal and only when the appellant/revision petitioner came to

know about the present impugned order, he questioned the

NC: 2024:KHC:47373

lawyer and then the lawyer who represented the

appellant/revision petitioner has told the appellant/revision

petitioner that he lost track of the case because of lost of his

dairy. Therefore, impugned order needs to be set aside.

9. He also pointed out that law on the point is very

clear inasmuch as even in the absence of the appellant/revision

petitioner, learned Judge in the First Appellate Court has to

reassess the material evidence and then pass appropriate

order. However, in the impugned order, no such reassessment

is forthcoming which has resulted in miscarriage of justice and

sought for allowing the revision petition.

10. Per contra, Smt.Waheeda M.M., learned High Court

Government Pleader while admitting the proposition of law that

a fair opportunity is to be granted to the appellant/revision

petitioner and in the absence of appellant/revision petitioner,

the First Appellate Court has to reassess and pass appropriate

orders.

11. She further contended that even after granting

eleven adjournments, when learned counsel for the

appellant/revision petitioner failed to appear before the Court,

NC: 2024:KHC:47373

the impugned order is passed and submits to the Court that

suitable order is to be passed in the facts and circumstances of

the case.

12. Having heard the parties in detail, this Court

perused the material on record meticulously.

13. On such perusal of the material on record, material

on record especially the order sheet of the First Appellate

Court, there is no doubt that the appellant/revision petitioner

has neglected to address the arguments on merits of the

matter.

14. Even in the absence of appellant/revision petitioner,

the First Appellate Court is required to pass the judgment on

merits by reassessing the material evidence on record. Said

proposition of law was emphasized by this Court time and again

including the order passed in Crl.R.P.No.1483/2004 in the

case of Sri.Yelle Gowda @ Gundappa v. State reported in

2016 SCC Online KAR 35.

15. Therefore, there is sufficient force in the arguments

addressed on behalf of the appellant/revision petitioner that

the approach of the First Appellate Court is not in conformity

NC: 2024:KHC:47373

with the procedure in disposing of an appeal in the absence of

appellant/revision petitioner.

16. It is noticed that no coercive steps are also taken

by learned Judge in the First Appellate Court before passing the

impugned order. Force of the First Appellate Court has not

utilized the powers vested in it before passing the impugned

order. Presence of the appellant/revision petitioner could have

been secured by taking coercive steps including by issuing Non

Bailable Warrant/proclamation to the appellant/revision

petitioner and his sureties.

17. Even after exhausting all that remedy, if the

accused failed to appear, before passing the impugned order,

learned Judge in the First Appellate Court was required to

provide assistance to the appellant/revision petitioner, a legal

aid counsel, if the counsel for appellant/revision petitioner was

not cooperating to proceed with the case on merits. No such

efforts have been made by learned Judge in the First Appellate

Court before passing the impugned order resulting in

miscarriage of justice. Therefore, impugned order needs to be

set aside.

NC: 2024:KHC:47373

18. Having said thus, conduct of the appellant/revision

petitioner cannot also be lost sight of. It was his bounden duty

to enquire his Advocate as to when his case is listed after he

obtained the benefit of order of suspension of sentence. No

reasons are forthcoming as to what steps that the

appellant/revision petitioner has taken in this regard by

contacting his Advocate.

19. Under such circumstances, while setting aside the

impugned order and providing one more opportunity of fair trial

to the appellant/revision petitioner, this Court deems it fit to

impose a reasonable cost to the appellant/revision petitioner to

further participate in the matter.

20. Accordingly, the following:

ORDER

i. Revision petition is allowed.

ii. The order dated 04.09.2024 passed in

Crl.A.No.626/2022 on the file of LX Additional City

Civil and Sessions Judge, Bengaluru is hereby set

aside.

NC: 2024:KHC:47373

iii. Matter is remitted to the First Appellate Court for

fresh disposal in accordance with law.

iv. Needless to emphasize that appellant/revision

petitioner shall voluntarily appear before the First

Appellate Court without waiting for notice from the

First Appellate Court on 10.12.2024.

v. Revision petitioner/appellant shall pay sum of

Rs.10,000/- cost on or before 10.12.2024 to the

State.